After judges ruled policy violated 1st Amendment, commissioners try to thread the needle on rules that allows rallies, with some restrictions

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LAFAYETTE, Ind. – There’s something about the Tippecanoe County Courthouse that draws just about anyone with a cause to the 19th century architectural icon to air things out.

In the year since Tippecanoe County was sued in federal court last summer and commissioners let loose of their pick-and-choose approach to who could use courthouse grounds, the groups that have shown up there continued to bear that out.

Take Saturday afternoon as the latest example.

That day, roughly 200 people gathered on the Columbia Street side of the courthouse steps to make their case for affordable health care at a time when Congress is wrangling over repeal-and-replace efforts for Obamacare.

“I think the community really showed up and came out to support that idea – that we all should be treated like humans, that we all have the right to health care,” said Lauren Murfree, an organizer with Younger Women’s Task Force of Greater Lafayette, which was part of the rally.

“The courthouse is central to Lafayette and the greater community,” Murfree said. “It has been used for many different rallies and calls to action. Everyone knows where it is and it brings the issue literally to a place of power. It shows that we are not going to sit by quietly.”

Since losing that federal suit – filed by the ACLU of Indiana on behalf of Higher Fellowship, an Indianapolis-based group lobbying for the legalization of marijuana – county commissioners have been looking to thread the needle on a policy that fits the confines of the First Amendment without allowing disruptions to daily courthouse proceedings.

Next week, they’ll take a stab at it.

The upshot of a proposed policy: Groups that want to use the courthouse as staging grounds will have to get permission, get insurance and hold events during off-hours, but commissioners will not have broad authority to stop events based on what those groups were trying to say.

“I appreciate the county’s willingness to open up the grounds the way it’s doing and trying to get to something that meets First Amendment standards,” said Ken Falk, attorney for the ACLU. “This is certainly a vast improvement over what was there before. … But I’m not sure they’re there, yet.”

Until 2016, the county had been working with a policy drafted in 1999, at a time when commissioners were trying to deflect requests to plant Nativity scenes on the courthouse lawn during December. The policy said any events or displays at the courthouse had to be sponsored by a county department and approved by the commissioners.

Higher Fellowship challenged that policy in 2016 after commissioners declined to sponsor a rally the group wanted to hold on the courthouse steps. (Commissioners had bristled a month earlier after the group had spent four hours on the steps, using amplifiers for music and speakers, despite warnings to turn things down. The group thought it had secured permission that day, but never did.)

A federal judge ruled in December that the county’s claims to a “closed forum” at the courthouse was unconstitutional and “stretches the concept of ‘government speech’ to its breaking point.” The county lost its appeal in June. But in that ruling, judges seemed open to the idea of a nuanced policy that allowed the annual Round the Fountain Art Fair but didn’t leave the county open to a free-for-all on the courthouse steps.

Drafted by county attorney Doug Masson, the proposed policy runs a page and a half.

“I looked at a variety of policies, but for the most part, I drafted this based on some concerns expressed by commissioners, liability concerns I have on behalf of the county and the case law that formed the basis of the court’s Higher Society decision,” Masson said.

Among the provisions:

It would limit events to 8 a.m.-8 p.m. on weekends, noon-1 p.m. weekdays, and 5-8 p.m. Mondays, Wednesdays, Thursdays and Fridays. (Tuesday evenings would be out as an accommodation for late court hours held those days.)

Displays, including signs and banners, couldn’t be left unattended and couldn’t be left behind.

Events would be allowed once a day, on a first-come/first-served basis.

Organizers would need to get permission more than 72 hours in advance. Groups would need to provide proof of insurance for “not less than $1 million.”

The proposed policy also would give commissioners “the right to decline an application for any reason, provided, however, that no application will be declined based upon the expressive content of the proposed event.”

How does the proposal fly with the ACLU? Falk had some concerns, including the 72-hour notice.

“Let’s say someone gets arrested and you think the arrest is unconstitutional,” Falk said. “You go down to the courthouse grounds (that day) with a small sign or a T-shirt on your chest, saying, ‘Release so-and-so.’ That would be unlawful or in violation of the ordinance, and I don’t see how that meets this notion of a reasonable time, date and place provision.”

Falk also questioned the need for insurance.

“What happens if it’s an unpopular group and they can’t get insurance?” Falk asked. “Let’s say it’s not a matter of being able to pony up the money; they just can’t get insurance. Would that, in effect, be a heckler’s veto? … Also, if there’s a group that doesn’t have any money, that could be a problem.”

Masson said he’s been in touch with Falk and has suggested some changes to the draft based on his feedback. He said he’s suggested a couple of other changes based on commissioners’ and public input.

“Of course, this is closer,” Falk said. “This removes the previous problem that was entirely subjective. … My concerns remain in how this will be used in the future for who is and isn’t allowed.”

And he’s talking about a spot in downtown Lafayette with a particular draw and a particular symbolic power.

“These places belong to the people,” Murfree said, “so the people should be able to assemble there and make their voices heard. We are government made up of people not policies.”

What you can do: To read the proposed courthouse use policy, go to jconline.com and click on the link to this story. The Tippecanoe County commissioners will consider the policy at 10 a.m. Monday, Aug. 7, at the County Office Building, 20 N. Third St.